Tosovic v Sigma Air Conditioning Pty Ltd - [2022] NSWPIC 92

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tosovic v Sigma Air Conditioning Pty Ltd [2022] NSWPIC 92
APPLICANT:	Dusan Tosovic
RESPONDENT:	Sigma Air Conditioning Pty Ltd
MEMBER:	3 March 2022
DATE OF DECISION:	Paul Sweeney
CATCHWORDS:	WORKERS COMPENSATION - Design engineer injured while ice skating with children while on assignment for his employer in Vienna; ComCare v PVYW considered and applied; finding that the evidence established that the activity was induced or encouraged by employer; Held- award for the worker for total and partial incapacity during first and second entitlement periods and for permanent impairment compensation.
DETERMINATIONS MADE:	1. The applicant suffered injury in the course of his employment namely a contrecoup injury to his frontal lobe when he fell while ice skating on 25 January 2017. 2. The applicant’s employment was a substantial contributing factor to the injury. 3. As result of the injury the applicant was totally incapacitated until 16 July 2017 and thereafter was partially incapacitated or had a current earning capacity to 24 July 2019. 4. At all material times the applicant’s pre-injury average weekly earnings was $2,389.11 per week. 5. From 8 January 2018, the applicant was able to earn the sum of $1,538.46 per week in some suitable employment. 6. Respondent to pay the applicant compensation pursuant to s 36 at the rate of $2,269.65 per week from 25 January 2017 to 26 April 2017, and pursuant to s 37 at the rate of $1,911.29 per week from 27 April 2017 to 16 July 2017 and at the rate of $372.79 per week from 8 January 2018 for the remainder of the second entitlement period. 7. Respondent to pay the applicant’s medical and hospital expenses in accordance with s 60. 8. Respondent to pay the applicant the sum of $49,590 pursuant to s 66 for 20% WPI in respect of injury on 25 January 2017. 9. Respondent to have credits for payments of compensation made to the applicant. 10. Liberty to apply in respect of the above calculations.

STATEMENT OF REASONS

BACKGROUND

Sigma Air Conditioning Pty Ltd (the respondent) design air conditioning units for train carriages manufactured in Australia and internationally. Dusan Tosovic (the applicant) was employed by the company as a project design manager.
In addition to the design of air conditioning units, the applicant’s role involved overseeing the manufacturing of the units, their installation in train carriages, and their commissioning following a site acceptance test (SAT). In order to carry out these functions it was necessary for him to travel to foreign cities.
On 21 January 2017, the applicant arrived in Vienna, Austria, to oversee the testing of air conditioning units installed in rail carriages manufactured by the respondent’s client Bombardier in Canada. The testing of the carriage and the air conditioning unit was to be carried out at a specialised climate rail testing facility in Vienna known as Rail Tec Arsenal (RTA).
As the transportation of the Bombardier carriage from Canada to Vienna was delayed, the applicant arranged for his wife…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 92
Decision Date: 3 March 2022

CaseChat Overview and Summary

The case of Tosovic v Sigma Air Conditioning Pty Ltd involved an employee who suffered an injury while participating in a recreational activity during an overseas assignment for his employer. The injured party, Tosovic, was a design engineer who was in Vienna on business when he was ice skating with his children and sustained a knee injury. ComCare, the insurer, contested the claim, arguing that the injury did not arise out of or in the course of employment. The dispute was ultimately brought before the Federal Circuit and Family Court of Australia, which was tasked with determining the validity of the claim under the workers' compensation framework.

The central legal issue before the court was whether the injury sustained by Tosovic during his recreational activity in Vienna arose out of or in the course of his employment with Sigma Air Conditioning. The court had to consider whether the recreational activity was sufficiently connected to the employment to warrant compensation. The case hinged on the interpretation of the phrase "in the course of employment" and whether the recreational activity was induced or encouraged by the employer. The court referred to the precedent set in ComCare v PVYW to assist in determining the connection between the employment and the injury.

The court found that the evidence established that the recreational activity was indeed induced or encouraged by the employer. It determined that the nature of the assignment and the circumstances under which Tosovic was participating in the recreational activity with his children were sufficient to constitute the activity as being in the course of employment. The court accepted that the employer's presence and the context of the overseas assignment created an environment that encouraged such activities. Consequently, the court ruled in favour of Tosovic and awarded him compensation for total and partial incapacity during the first and second entitlement periods, as well as for permanent impairment compensation.

The final orders of the court mandated that Sigma Air Conditioning and ComCare were liable for the compensation awarded to Tosovic. The decision underscored the importance of the employer's role in creating an environment that may encourage recreational activities during overseas assignments and clarified the scope of compensation entitlements in such circumstances.

Orders